Delhi District Court
State vs . (1) Priya Shah on 21 April, 2012
SC No. 133/04
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL
JUDGE NDPS PATIALA HOUSE COURTS: NEW DELHI
Date of Institution : 01.05.2000
Judgment reserved on : 28.03.2012
Date of pronouncement : 21.04.2012
SC No. 133/04
ID No. 02403R0183542004
FIR No. 70/00
PS Vasant Kunj
u/s 29 r/w 20(b)(ii) NDPS Act
State Vs. (1) Priya Shah
D/o Satnam Shah
(2) Satnam Shah (Since deceased)
S/o Late Sh. Chanan Shah
Both R/o C9/9663,
Vasant Kunj, Delhi.
JUDGMENT
1. The chargesheet in the present case has been filed against the afore mentioned accused persons u/s 29 r/w 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act").
FIR No.70/00 Page 1 of 45 SC No. 133/04
2. Briefly stated the allegations against the accused persons as contained in the chargesheet are as follows:
(a) Sh. Udai Sahai, DCP West district is stated to have received a credible information that Satnam Shah and his daughter Priya Shah both residents of Vasant Kunj are indulging in the nefarious trade of illicit narcotics drugs and they are in possession of huge quantity of "Charas" in their house at C9/9663, Vasant Kunj, New Delhi.
(b) On the instructions of DCP Sh. Udai Sahay, ACP Rajouri Garden Sh. PS Kushwaha constituted a raiding party including Sh.
Rajinder Singh Chikkara, SHO PS Hari Nagar, Sh. Kulbhushan Sharma Additional SHO PS Kirti Nagar, SI Vinay Malik, SI Vandana Rao, Ct. Udai Veer and Ct. Saleemuddin and directed them to assemble at PS Kirti Nagar at about 04.30 AM and Sh. Udai Sahay, DCP briefed all the members of the said raiding team.
(c) All the members of the raiding team left for PS Vasant Kunj at about 05.15 AM and at PS Vasant Kunj, ACP Deepak Purohit and SHO Inspector Mohd. Iqbal were informed about the secret information and they were also joined in the raiding team. Thereafter all the police officials reached at C9/9663, Vasant Kunj, New Delhi at about 06.30 AM and on checking the door of the said house, it was found bolted from inside and ACP PS Kushwaha is stated to have pressed the door bell and FIR No.70/00 Page 2 of 45 SC No. 133/04 after about 510 minutes, the door was opened by an one old man aged about 65 years who on asking disclosed his name as Satnam Shah and on further enquiry, also disclosed that Priya Shah was his daughter and was residing at the same house. In the meantime, SHO PS Vasant Kunj Inspector Mohd. Iqbal brought two independent witnesses from the locality, Ms. Nisha Saxena and Sh. M.M. Mehrotra and introduced them to all the members of the raiding party. Sh. Kushwaha also informed them about the secret information. Accused Satnam Shah was asked to call his daughter Priya to the door of the house. The accused persons were also informed about the secret information and at this, the accused persons became nervous and have stated to have reluctantly told that they had charas in their house kept in 7 suitcases.
(d) Notice u/s 50 NDPS Act was given to both the accused persons on which they said that they want to get themselves searched by the NCB officials themselves. All the police officials entered into the house of the accused persons. As per the allegations in the chargesheet, both the accused persons together brought seven suitcases from the adjoining bedroom and produced the same before the raiding team. However, both the accused were unable to produce the keys of the suitcases and were not aware of the same and therefore all the suitcases were broken opened and were found to contain different quantities of charas. In total 150 Kg and FIR No.70/00 Page 3 of 45 SC No. 133/04 260 gms of charas was recovered from all the seven suitcases. Samples were drawn as per the procedure and the entire case property was properly seized and sealed with the seal of "RC" and after use the seal was handed over to public witness Praveen Kumar. A receipt was also prepared in this regard. The case property alongwith the FSL form was taken into possession. Both the accused persons were handed over to SHO PS Vasant Kunj Inspector Mohd. Iqbal. On the basis of rukka, the case was registered and SI O.P. Thakur was handed over the investigation of the case.
(e) SI O.P. Thakur interrogated and arrested both the accused persons who initially disclosed that they had procured the charas from one Rajesh Bhardwaj of Gurgaon. Police custody for both the accused was sought and during the said custody, the said Rajesh Bhardwaj of Gurgaon was also interrogated several times but nothing incriminating could be established against him. Many other persons related to both the accused persons were also interrogated. The house belonging to both the accused persons was also searched. Various other premises belonging to the accused persons at Vasant Kunj, Maharani Bagh, Khan Market etc in Delhi and Gurgaon were also searched and diaries, properties documents, keys, bank statements, books, passports etc of both the accused were also seized. It is also stated in the chargesheet that despite sincere efforts FIR No.70/00 Page 4 of 45 SC No. 133/04 made, the source of charas could not be established as accused Satnam kept on changing is statement. After receiving the FSL report, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed against accused Priya Shah and Satnam Shah vide order dated 06.07.2000 for the offence of having conspired and being found in illegal and unlawful possession of 150 Kg 260 gms of charas in contravention of section 8 of the NDPS Act and punishable u/s 20(b)(ii) r/w section 29 of the NDPS Act. It is relevant to mention herein that as per the record, though accused Priya Shah was granted bail by Hon'ble High Court vide order dated 16.08.2000, her father and coaccused Satnam Shah expired in judicial custody on 06.12.2000 and thereafter, it is only Priya Shah who has faced trial in this case. In order to prove its case against her, the prosecution has examined 23 witness in all.
4. PW1 Nisha Saxena, a public witness has deposed that she was at the relevant time General Secretary of the Residence Welfare Association of Vasant Kunj and was also the security incharge and that on 04.02.2000 at about 06:45 AM she was informed by the chowkidar of the society that there are some police officials present in the colony. FIR No.70/00 Page 5 of 45 SC No. 133/04 According to her in the meantime a beat Constable also came and told her that the SHO also wants to meet her and therefore she went to the residence of Mr. Shah at flat no. 9663 where she met SHO Iqbal Mohd, DCP (South) Sh. Kamraj and DCP (West) Sh. Udai Sahay. She has also deposed that in the meantime Sh. Mehrotra (PW2) the President of the RWA also joined and in front of both of them seven suitcases lying in the drawing room of Mr. Shah were opened and from each suit case the packages containing some small slabs and some big slabs of substance green in colour were recovered. She has also deposed that some suitcases were opened while others were broken opened as their keys were not available. Though she has deposed that she does not remember the number of packages that were recovered in total from the suitcases, according to her deposition each packet was weighed separately and this weight was noted and thereafter two samples were taken out from each packet. She has also deposed that all the samples were kept separately in the polythene packet and packets from which the sample have been drawn were kept back in the suitcases which were then wrapped in a white cloth and sealed. She has also deposed that abut 10:30 PM on the night of the same day the beat Constable came to our house and asked her to sign two documents which have been exhibited as Ex.PW1/A and Ex.PW1/B. This witness was also crossexamined on behalf of the State on the submission FIR No.70/00 Page 6 of 45 SC No. 133/04 of the Ld. APP that she was resiling from her earlier statement.
5. PW2 Sh. M.M. Mehrotra also resident of the same locality in which the house of the accused Satnam was situated, has deposed that in the month of February, 2000 at about 08:0008:15 AM, the beat Constable came to his house and told that the SHO wants to meet him at the house of Satnam Shah. He has further deposed that subsequently he went to the house of Satnam Shah and saw some six or seven suitcases were lying in the drawing room and that one or two suitcases were half opened and others were broken opened and all the suitcases were found to containing some packages containing some black substances which the police told him to be charas. This witness has also deposed that each packet was weighed separately and samples taken from the said packets were also weighed and sealed after wrapping in white cloth. He has further deposed that he does not remember the weight of the said packets or the samples drawn. He has also deposed that about 10:00 PM on the same night beat Constable came to his house and asked him to sign some documents which has been identified by this witness as Ex.PW1/A and Ex.PW2/A.
6. PW3 Sh. Praveen Kumar has also been produced by the FIR No.70/00 Page 7 of 45 SC No. 133/04 prosecution in the capacity of a public witness. He has deposed that on 04.04.2000, he had received a telephone call from PS Kirti Nagar and he was told that some raid has to be conducted and he must join the same. According to his deposition at about 04:30 AM, he reached PS Kirti Nagar where some police officials were already present and that from PS Kirti Nagar all of them proceeded to PS Vasant Kunj at about 06:00 AM and that thereafter from PS Vasant Kunj the police party reached the house of Satnam Shah at Vasant Kunj. He has also deposed that after reaching the house of Satnam Shah the police officials gave documents to Satnam Shah regarding the search of his house and that thereafter from one bed room four suit cases were recovered and from another room three bags were recovered (in the latter part of his deposition the witness has stated that he has inadvertently mentioned bags though from the other room also three suitcases were recovered). He has also deposed that locks of all the suitcases were broken opened with the help of a screw driver as the keys of the suitcases were not found. According to the deposition of this witness from each of the suitcase brown colour brick shape substance was found from which the two sets of samples were drawn out and wrapped in cloth parcel. He has also deposed that all the seven suitcases were separately tagged with the string and then wrapped in a white cloth and FIR No.70/00 Page 8 of 45 SC No. 133/04 sealed with the seal of RC. He has also specifically deposed that seal after use was handed over to him with the instructions that same should be produced in the court by him and that he has brought the seal. He has also deposed that police officials prepared the documents regarding weight of the charas recovered, its seizure and the samples drawn therefrom. This witness also deposed that the total weight of the charas recovered was 150 kg. and some grams.
7. PW4 Satpal Kaushal has deposed that his brother and sister in law had purchased the flat in question i.e. C9/9603, Vasant Kunj and that he was having the General Power of Attorney with respect to the said flat. He has further deposed that he had sold the said flat to Kumkum Shah, mother of the accused Priya Shah, on the basis of the Power of Attorney document itself and that his sister in law Shashi Bala also executed a "will" with respect to the said property in the name of accused Priya Shah. He has placed on record photocopies of the said will and the copy of General Power of Attorney.
8. PW8 Surinder Pal Sharma is the gardener who has deposed that on 30.01.2000 he was called by the accused Priya Shah and her father FIR No.70/00 Page 9 of 45 SC No. 133/04 to mow the lawn in their house bearing no. K137, South City and the amount settled for the said job was Rs.250/. He has also deposed that he mowed the lawn from about 03:30 to 04:00 PM and when he asked for his labour charges he was asked by father of the accused Priya to load seven suitcases in their car. He has also deposed that he removed the suitcases. Since the suitcases were heavy he was helped by the accused Priya Shah in loading the same in the car. He has further deposed that he was paid Rs. 300/ thereafter and was allowed to go.
9. The remaining witnesses are all police officials. The incident in question starts from the secret information received by PW12 Sh. Udai Sahai. This witness has deposed that in the month of February, 2000 he was posted as DCP West District Rajouri Garden and that in the night of 04.02.2000, he had received a telephonic information that there is a house of Satnam Shah in the area of Vasant Kunj where there is a possibility of huge recovery of charas. He has also deposed that on receipt of this information he immediately proceeded to the nearest PS of the West district i.e. PS Kirti Nagar and informed the area ACP Sh. P.S. Khushwaha, SHO Hari Nagar Sh. Rajender Singh, Addl. SHO Kirti Nagar Insp. Kulbhushan, SI Vinay Malik and W/SI Vandana Rao to attend FIR No.70/00 Page 10 of 45 SC No. 133/04 meeting with him in PS Kirti Nagar. All the said police officials are deposed to have attended the said meeting in which according to PW12 he briefed them about the secret information and directed them to proceed to the spot for taking necessary action. PW13 ACP Pramod Singh Kushwaha, PW14 Deepak Purohit Chief of Police, PW15 W/SI Vandana Rao, PW18 Inspector Mohd. Iqbal, PW21 Inspector Kulbhushan Sharma and PW22 Rajender Singh Chhikara, Additional Superintendent of Police CBI, being all members of the raiding team have deposed on similar lines. PW13 Sh. Pramod Singh Kushwaha, the ACP has in particular deposed that the raiding team constituted at PS Kirti Nagar was joined by a public witness Pradeep Kumar and thereafter raiding team reached at PS Vasant Kunj where ACP Delhi Cant Sh. Deepak Purohit and SHO Vasant Kunj Mohd. Iqbal are stated to have been present. They were also directed to join the raiding party. All the aforementioned witnesses have supported the assertions made in the charge sheet and have described in detail the search and seizure proceedings conducted with respect to accused persons Satnam Shah and Priya Shah on 04.02.2000. The personal search memo of raiding member SI Vandana has been exhibited as Ex.PW1/B and other remaining team members as Ex.PW2/A. Notice u/s 50 NDPS Act given to FIR No.70/00 Page 11 of 45 SC No. 133/04 accused Satnam Shah has been exhibited as Ex.PW3/A and that of accused Priya Shah as Ex.PW3/B. The handing over of seal to PW3 has been exhibited as Ex.PW3/C. The seizure memo has been proved as Ex.PW1/A. Rukka prepared by Insp. Rajender Singh has been proved as Ex.PW1/DA.
10. PW9 SI O.P.Thakur is the second investigating officer of the present case who has deposed that he had reached the spot of recovery at about 03:30 PM and on reaching the spot he had recorded the statement of witnesses u/s 161 Cr.P.C. As per this witness, he then interrogated accused persons and thereafter recorded the disclosure statement of accused Priya Shah, Ex.PW9/A and of Satnam Shah, Ex.PW4/B and also arrested them vide arrest memo Ex.PW9/C and Ex.PW9/D respectively. Personal search of the accused persons Priya Shah and Satnam Shah were taken vide personal search memos Ex.PW9/E and Ex.PW9/F. He has further deposed that personal search of accused Priya Shah was got conducted by PW16 W/HC Sushma. As per this witness he thereafter prepared the site plan Ex.PW9/G at the instance of Insp. Mohd. Iqbal. He has further deposed that seven days PC remand of accused persons was obtained and further investigation was handed over to PW20 Insp. FIR No.70/00 Page 12 of 45 SC No. 133/04 Bishan Mohan, Special Staff.
11. PW5 HC Gurmukh has deposed that he was the duty officer on 04.02.2000 and that on this date he had received the rukka of the present case through PW17 Ct. Udaibir and had recorded the FIR Ex.PW5/A, and had sent back the rukka along with copy of FIR to IO for further investigation.
12. PW6 HC Desh Raj has deposed that on 10.02.2000 on the directions of PW20 Insp. Bishan Mohan, he had taken two parcels sealed with the seal of RC and MI from PS Vasant Kunj from MHC(M) vide RC no. 110/21 and deposited the same with CFSL, Malviya Nagar and obtained its acknowledgment receipt. He has also specifically deposed that so long as the case property remained with him, it was not tampered with.
13. PW7 HC Kuldeep Singh has deposed that on 10.02.2000 on the directions of Insp. Bishan Mohan, he had taken three parcels sealed with the seal of DRY from PS Vasant Kunj from MHC(M) vide RC no. 109/21 and deposited the same with CFSL, CGO Complex, Lodhi Road FIR No.70/00 Page 13 of 45 SC No. 133/04 and obtained its acknowledgment receipt. He has also specifically deposed that so long as the case property remained with him, it was not tampered with.
14. PW10 HC Satbir Singh has deposed that he was posted as MHC(M) at PS Vasant Kunj on 04.02.2000 and that on this date, Insp. Mohd. Iqbal had deposited with him the case property along with form FSL. The said witness has also given details of the entries made by him with respect to the deposit of case property at Sl. No.1161. He has also deposed that on 07.02.2000 Insp. Bishan Mohan had deposited with him the case property. The said witness has also given details of the entries made by him with respect to the deposit of case property at Sl. No.1166. He has proved the said entries as Ex.PW10/A. According to his deposition, on 10.02.2000 he had also sent two sealed parcels sealed with the seal of RC and MI to FSL Malviya Nagar through HC Desh Raj vide RC no. 110/21 and three sealed parcels to CFSL Lodhi Colony through HC Kuldeep Singh vide RC no. 109/21. He has also deposed that on 06.04.2000 two sealed parcels along with report of FSL Malviya Nagar was deposited in malkhana through HC Kuldeep. He has also deposed that the result was handed over to IO. He has also deposed that on 13.04.2000 three sealed parcels along with report of CFSL Lodhi Colony was FIR No.70/00 Page 14 of 45 SC No. 133/04 deposited in malkhana through Ct. Pradeep. The entries were made in the malkhana register.
15. PW11 Ram Kumar has deposed that he was posted as SO to DCP, SW district on 04.02.2000 and that on the same day, report u/s 57 NDPS Act was received in the office of DCP from PS Vasant Kunj through ACP Delhi Cantt. and same was placed before DCP Sh. P. Kamraj who had seen the same and signed at point A. The record produced by this witness has been duly exhibited during his testimony as Ex.PW11/A and this witness has also identified the signature of DCP P. Kamraj.
16. PW19 Ct. Bani Singh has deposed that he was posted at PS Vasant Vihar, DCP office, Photo section on 04.02.2000 and that on the same day at around 06:30 AM on receipt of call from SHO, Vasant Kunj he along with PW23 H.Ct. Ashok, Videographer, had gone to the house no. C9/9663, Vasant Kunj and there he took 10 photographs on the direction of the IO. The photographs and negatives produced by this witness has been duly exhibited during his testimony as Ex.PW19/A1 to A10 and Ex.PW19/B1 to B10.
FIR No.70/00 Page 15 of 45 SC No. 133/04
17. PW23 H Ct. Ashok has deposed that on 4/2/2000 he was posted at DCP office South West as a photographer/videographer and that on this date on the instructions of officials of PS Vasant Kunj he had gone to House No. C9/9663 Vasant Kunj and had recorded videography. According to this deposition the next day the videographer cassette was sent to DCP South West through HC Ajit.
18. The entire aforementioned incriminating evidence was put to the accused and her statement u/s 313 Cr.PC was recorded. The accused also herself stepped into the witness box and she has been examined as DW3. Two other witnesses DW1 Balram Soni, Scientific Assistant, Regional Meteorological Centre, Lodhi Road, New Delhi and DW2 Anita Prakash Lokur, the aunt of accused, have also been produced as defence witnesses.
19. DW1 has produced the relevant record to show that on 04.02.2000, Sunrise in Delhi took place at 07:08:02 (Ist) and sun set on the same day took place at 18:02:01 (IST). DW2 Anita Prakash Lokur has inter alia deposed that accused Priya Shah is the daughter of her elder sister Kumkum Shah and her sister and her husband Satnam Shah did not have cordial relations and since the end of the year 1998, her sister was FIR No.70/00 Page 16 of 45 SC No. 133/04 staying separately from her husband at her house at A6, DDA SFS Flats in Vasant Vihar, New Delhi. She has also deposed that as per the compromise reached between Satnam Shah and her sister, accused Priya Shah was to remain with her mother at the said place and was to visit her father in the weekend for 23 days once or twice a month. She also deposed that accused Priya Shah resided with her mother at Vasant Vihar. As per the deposition of this witness, mother of accused Priya Shah was also suffering from multiple sclerosis and her condition was very serious on the date of the incident and that accused Priya Shah had gone to visit her father with an intention of apprising him of the condition of her mother and also for financial help in case hospitalization was required.
20. DW3, the accused herself in her deposition has also more or less stated the same facts that namely in the year 2000 she was staying with her mother and her aunt Anita Prakash Lokur and that due to the strained relations between her mother and father, she used to stay with her mother and used to visit her father for a few days once or twice a month. She has also deposed that her mother was suffering from multiple sclerosis since the year 1994 and in the month of January, 2000, her mother was very ill due to which she did not visit her father for that entire month. As per her deposition, on 03.02.2000, she had gone to visit her father to discuss about FIR No.70/00 Page 17 of 45 SC No. 133/04 her mother's serious condition and had stayed overnight at her father's place. As per her deposition, she was woken up by a loud knocking on her bedroom door and when she opened the door there was a lady standing outside the bedroom whom she did not recognize. The said lady introduced herself as SI Vandana Rao and requested the accused to come downstairs. Upon reaching downstairs, she was totally shocked to find a number of police officials in her father's house and there were several suitcases lying scattered in her house. There was also a photographer and a videographer present who were recording everything in the house at that point of time and that soon after about 07.30 AM, one lady Mrs. Nisha Saxena, member of RWA Vasant Kunj and Sh. Mehrotra entered her father's house. According to the accused, she continued to ask her father as to what was happening in the house and that she was in a terrible state and was crying and wanted to speak to her mother. She tried to call her mother from her mobile phone but that ACP Kushwaha confiscated her mobile phone and also assured her that she would be able to speak to her mother at later stage. She has also deposed that then Sh. Udai Sahai instructed SI Vandana Rao to take her upstairs to her room as she was in a very bad frame of mind. She has also specifically deposed that she was not aware as to what were the contents of the suitcases and to whom they belonged. She has also specifically deposed that she did not sign any FIR No.70/00 Page 18 of 45 SC No. 133/04 document and paper in her father's house and that later during early hours of 05.02.2000, in the office of SHO PS Vasant Kunj Inspector Iqbal Mohammad, Sh.O.P. Thakur for the first time made her sign many documents. She has also stated that on production of the video, it will be clear that she did not produce or carry any suitcase from anywhere. She has also deposed that in the year 2002, the Enforcement Directorate charged her with false allegations of possession of huge sums of money in foreign bank account but she has been subsequently exonerated. She has further deposed that she is a victim of circumstances and that she has been falsely implicated in this case being the successor of her father Satnam Shah.
21. Detailed written submissions have been filed on record on behalf of Ld. Counsel Sh. A.K. Sen Gupta and Sh. Surya Prakash and lengthy oral arguments have also been advanced by the Ld. Counsels. Ld. APP Ms. Sushma Sharma and Sh. S.C. Sirohi have also made detailed submissions. For the sake of brevity, written arguments are not being repeated here in detail but the main contentions taken on behalf of accused are mainly that:
(i) The provisions of section 41 and 42 of the NDPS Act have not been complied with in as much as the officers who conducted the search and seizure proceedings at the residence of Satnam Shah were not FIR No.70/00 Page 19 of 45 SC No. 133/04 empowered or authorized to carry out any search and seizure proceedings.
It is also the contention that as per the provisions of section 42 of the NDPS Act, the officer who had received the secret information should have reduced the same into writing and since, the same has not been done so in the present case, the entire alleged recovery from the resident of accused Satnam Shah stands vitiated.
(ii) The documents filed on record on behalf of prosecution which were shown to have been allegedly prepared before the registration of FIR were in fact prepared only thereafter and that this shows that the case of the prosecution is concocted. It has been submitted that the prosecution has been unable to explain how the FIR number finds mention on the section 50 notice of the NDPS Act, the seizure memo, the rukka, the personal search memos, etc in the same handwriting as the contents of these documents and that therefore it is to be inferred that these documents were not prepared at the spot but infact were prepared later on in the police station.
(iii) The evidence of six witnesses (PW1, PW2, PW3, PW5, PW19 and PW22) who were all members of the raiding party clearly establishes that they left the spot in the afternoon prior to the registration of the FIR though the Investigating Officer is O.P. Thakur PW9 claimed that he recorded the statements of all the witnesses at the spot till 08.30/09.00 PM FIR No.70/00 Page 20 of 45 SC No. 133/04 on that day i.e. 04.02.2000 since he started recording the statements of those witnesses at the spot at about 04.00 PM (half an hour of his arrival at the spot at 03.30 PM).
(iv) None of the public witnesses have supported the case of the prosecution and have deposed that the search and seizure proceedings did not take place in their presence and therefore it cannot be stated that there has been compliance of section 51 of the NDPS Act.
(v) The failure of the prosecution in producing the video admittedly taken of the entire proceedings shows that the evidence which could have proved the innocence of the accused has been deliberately withheld.
(vi) The conduct of the investigating officer in accompanying PW8 in the court shows that he compelled the witness to depose against the accused.
(vii) No material has been proved on record to establish that accused Priya Shah had any knowledge about the presence of contraband in the house of her father or that she was in any manner remotely engaged with any offence committed by her father.
In support of their contentions, Ld. Defence counsels have relied upon the following judgments:
(i) State of Punjab Vs. Balbir Singh, AIR 1994 SC 1872.
(ii) Ritesh Chakravarti Vs. State of Madhya Pradesh, 2006(9) FIR No.70/00 Page 21 of 45 SC No. 133/04 Scale 644.
(iii) Directorate of Revenue and Another Vs. Mohammed Nisar Holia, (2008) 2SCC 370.
(iv) Sarju @ Ramu Vs. State of Uttar Pradesh, (2009) 13SCC
698.
(v) Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif and Others, AIR 1968 SC 1413.
(vi) Sriram Industrial Enterprises Ltd. Vs. Mahak Singh and Others, (2007) 4SCC 94.
(vii) Kalu Ram Vs. State, 82 (1999) DLT 286. (viii) Ashok Vs. State, 82 (1999) 382. (ix) Prabhu Dayal Deorah etc. Vs. District Magistrate, AIR 1974 SC 183. (x) Gopalanachari Vs. State of Kerala, AIR 1981 SC 674. (xi) State of U.P. Vs. Noorie (Smt) @ Noor Jahan and Others, 1996 SCC (Cri) 945. (xii) Dr. S.L. Goswami Vs. State of Madhya Pradesh, 1972 SCC (Cri) 258. (xiii) Karnail Singh Vs. State of Haryana, (2009) 8SCC 539. (xiv) State of Karnataka Vs. Dondusa Namasa Baddi, (2010) 12SCC 495. (xv) Rajinder Singh Vs. State of Haryana, (2011) 8SCC 130.
22. Ld. APP on behalf of the State, Ms. Sushma, on the other hand has placed on record a notification issued by the Government of India, Ministry of Home Affairs vide which all the Gazetted officers of the police department have been invested with the powers of search and FIR No.70/00 Page 22 of 45 SC No. 133/04 seizure as mentioned in section 41 of the NDPS Act and therefore the contention on behalf of the State is that the investigating officer of the present case was duly invested with the powers of search and seizure as contemplated u/s 41 of the NDPS Act. It has also been contended that DCP Udai Sahai being a Gazetted Officer was not required to himself record the secret information into writing and the recording of the same information by ACP P.S. Kushwaha vide DD entries 25A, 27A and 28A is sufficient compliance of section 42 of the NDPS Act. As regards two public witnesses turning hostile, the submissions made by the Ld. APP Ms. Sushma is that it is natural human conduct for a person to support his neighbour in order to maintain good relations with him. She has also pointed out that the stand taken by the accused that she was not residing alongwith her father at Vasant Kunj is completely false for her passport shows that she was a resident of Vasant Kunj address only. She has also submitted that the accused could not produce any document to show that she and her mother were residing with her aunt.
23. Ld. APP for State Sh. Sirohi has submitted that even if the prosecution has failed to produce the videography, it cannot be inferred that the entire case of the prosecution is false. He submits that even if it is assumed that accused Priya Shah had not produced the suitcases, the fact FIR No.70/00 Page 23 of 45 SC No. 133/04 remains that she was the resident of the same house from which the suitcases were recovered and the onus was on her to prove that she did not have any knowledge that the suitcases containing charas were lying in the house. It is further submitted that being the daughter of the accused Satnam Shah and residing in the same house as her father, it is to be deemed that she was in the knowledge of what all was lying in the house. He has also submitted that in fact Priya Shah was the sole beneficiary of the flat from which the contraband was recovered in as much as a "will" had been executed with respect to the said flat in her favour. In support of their contentions, Ld. APPs have relied upon the following judgments:
(i) Union of India Vs. Satrohan (2008) 8SCC 313.
(ii) Prabhulal Vs. The Assistant Director AIR 2003 SC 4311.
(iii)Dhanpal Singh Barunshingh Thakur Vs. State of Gujarat 1995 Cri. L.J. 3751.
(iv)Ghasita Sahu Vs. State of Madhya Pradesh 2008 CRI. L.J. 2060.
(v) T.N. Janardhanan Pillai Vs. State of Kerala 1992 CRI. L.J. 436.
(vi)Kehar Singh & Ors. Vs. State (Delhi Administration) (1988) 3 SCC 609.
24. I have considered the submissions made by all the Ld. Counsels and have carefully perused the record and the judicial dicta referred to by them. I will first deal with the contention of the Ld. Defence Counsel that the fact that the documents pertaining to the seizure and sealing procedure FIR No.70/00 Page 24 of 45 SC No. 133/04 were not prepared at the spot vitiate the entire case of the prosecution. I have gone through the judgments filed by the Ld. Counsel in support of this contention of his, namely the judgments pronounced by Hon'ble Delhi High Court in Ashok Vs. State and Kalu Vs. State (Supra). In both the judgments, Hon'ble Delhi High Court after taking note that the documents of recovery and seizure were prepared at the spot, discarded only the testimonies of the police officials. In both the said cases, there was no public witness to the alleged recovery of contraband from the accused and therefore in the absence of the same, it was held that since the testimony of the police officials has been discarded and that there is no other evidence with respect to the recovery of contraband, the accused is entitled to be acquitted. In the present case, apart from the police officials, there is on record the credible testimonies of public witnesses PW1 and PW2, which have not infact been seriously challenged by the defence. The testimony of both the public witnesses PW1 and PW2 is to the effect that they had witnessed seven suitcases lying in the drawing room of the residence of Satnam Shah and that in their presence, contraband was recovered from the said suitcases and samples were drawn therefrom. The testimony of these two witnesses in this regard has not even been seriously questioned by the defence. In such view of the FIR No.70/00 Page 25 of 45 SC No. 133/04 matter, the recovery of contraband from the house of accused Satnam Shah cannot be doubted. However since both these witnesses have specifically deposed that they had not signed the seizure memo and personal search memo, Ex.PW1/A and PW1/B respectively, at the spot and had signed the same only at night at about 10.30 PM when a beat constable had brought the said documents at their residences, and also taking into account the contradictions pointed out in the depositions of PW1, PW2, PW3, PW15, PW19 and PW22 by Ld. Defence Counsel with respect to the time at which the police officials left the spot, it is to be held that the police officials have deposed incorrectly that all documents pertaining to the search and seizure were prepared at the spot. In my considered opinion such incorrect depositions, though do raise a question on the credibility of the police officials, they are not sufficient to hold that the entire evidence with respect to the recovery of the contraband from the house of the accused Satnam Shah is to be disbelieved.
25. Coming now to the next contention of the defence, with respect to non compliance of section 42 of the NDPS Act though initially Ld. Defence Counsel Sh. A.K. Sen Gupta had vehemently contended that neither DCP Udai Sahai nor ACP P.S. Kushwaha have been able to place on record the orders by which they have been empowered to act under the FIR No.70/00 Page 26 of 45 SC No. 133/04 NDPS Act, pursuant to Ld. APP placing on record the notification no. F10(76)/85 Fin.(G) issued by the Government of India, Ld. Defence Counsel Sh. A.K. Sen Gupta fairly conceded that the DCP Udai Sahai and ACP P.S. Kushwaha being above the rank of Inspector by virtue of the aforementioned notification did have the powers of search and seizure under the NDPS Act. His contention thereafter has been limited to the extent that the DCP Udai Sahai despite having allegedly received the secret information did not reduce it into writing and nor did he chose to conduct the search and seizure proceedings on his own and that therefore there has been total non compliance of section 42 of the NDPS Act. He has also contended that ACP P.S. Kushwaha despite being authorized by PW12 DCP Udai Sahai to conduct the raid, did not have the powers to enter the premises of Satnam Shah before sunrise without recording the reasons for his belief that it was necessary to enter the said premises between sunset and sunrise.
26. To appreciate the contentions of the Ld. Defence Counsel and Ld. APP it would be relevant herein to consider the provisions of section 41 and 42 of the NDPS Act. Subsection (1) of section 42 of the NDPS Act makes it mandatory for an officer (inter alia being an officer superior FIR No.70/00 Page 27 of 45 SC No. 133/04 in rank to a Peon, Sepoy or Constable of the departments of central excise, narcotics, customs, revenue intelligence, who is empowered in this behalf by the Central or the State Government) who has received an information with respect to an offence being committed in contravention of the provisions of the NDPS Act, to reduce the said information into writing, before conducting any search and seizure proceedings and sub section (2) of section 42 lays down that copy of such information is to be sent to the immediate superior official. On the other hand as per sub section (2) of section 41, any officer of Gazetted rank of the departments of Central Excise narcotics, customs, revenue intelligence, who is empowered in this behalf by the Central or the State Government, who has reason to believe from personal knowledge or information received and taken in writing that any person has committed an offence punishable under this Act or any contraband in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence etc is kept or concealed in any building, conveyance or place, may authorize any officer subordinate to him but superior in rank to a Peon, Sepoy or a Constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or FIR No.70/00 Page 28 of 45 SC No. 133/04 search such a building, conveyance or place. Sub section (3) of section 41 further makes it clear that the officer to whom a warrant under sub section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorized under subsection (2) shall have all the powers of an officer acting under section 42. In other words, the powers of search and seizure of a Gazetted officer and that of an officer authorized by the Gazetted officer under subsection (2) of section 41 are the same. However, in view of the distinct provisions of the two sections namely 41 and 42 the Hon'ble Supreme Court in two of its judgments pronounced in the cases reported as Union of India Vs. Satrohan 2008(8) SCC 313 and M Prabhu Lal Vs. The Assistant Director, DRI JT 2003 Suppl. (2) SC 459 has held that where a Gazetted Officer himself receives some information and thereafter himself conducts the search and seizure proceedings, the provisions of section 42 NDPS Act, with respect to the reduction of information into writing, are not required to be complied with. In other words, as per the judicial dicta, the duties imposed on the said two categories of Officers namely a Gazetted Officer and an officer authorised by him are different. Admittedly in the present case PW12 Sh. Udai Sahai who had received the secret information is a Gazetted Officer and therefore, in my considered opinion, in view of the FIR No.70/00 Page 29 of 45 SC No. 133/04 said judgments of the Hon'ble Supreme Court, it is to be held in the facts of the present case, that the provisions of section 42 NDPS Act have no application and were not to be complied with. Though, Ld. Defence counsel Sh. Sen Gupta has tried to distinguish the said two judgments on the ground that in the present case PW12 Sh. Udai Sahai who had received the secret information was not a party to the search and seizure proceedings, in my considered opinion, the said fact does not make a difference. No doubt, before the Hon'ble Supreme Court in both the aforementioned cases, the Gazetted Officer himself had conducted the search and seizure proceedings but in my considered opinion, that does not have any bearing on the judicial dicta laid down in the said two judgments. In both the judgments, Hon'ble Supreme Court has observed that it is clear from the language of subSection (2) of Section 42 NDPS Act that it applies to an officer contemplated by subsection (1) thereof and not to a Gazetted officer contemplated by subsection (2) of section 41 NDPS Act. The Hon'ble Supreme Court has also observed that a Gazetted officer has been differently dealt with, under the provisions of NDPS Act and more trust has been reposed in him. In other words, it has been laid down by the Hon'ble Supreme Court that where a Gazetted officer himself receives the secret information, the legislature has reposed faith in him and therefore, he is not required to reduce the secret information into FIR No.70/00 Page 30 of 45 SC No. 133/04 writing and then inform his superior. This judicial dicta, in my considered opinion, will not change only because the Gazetted officer instead of himself acting upon the secret information authorizes his subordinate officer to do so, for in both the eventualities, he is acting under the provisions of Section 41(2) of NDPS Act which empowers an officer of a Gazetted rank to himself act namely conduct the search, seizure and arrest proceedings or authorize his subordinate to do such acts. None of the judgments relied upon by the Ld. Defence Counsel lay down any contrary proposition. In the present case, both DCP Udai Sahai and ACP P.S. Kushwaha are Gazetted Officers and being above the rank of Inspectors, by virtue of the Delhi Gazette Notification placed on record by Ld. APP Ms. Sushma, both of them have been empowered to act under the provisions of section 41(2) of the NDPS Act. Thus by virtue of section 41(2), both of them have powers to arrest a person or search a building, conveyance or place if they had reasons to believe from personal knowledge or information received as to commission of offence punishable under chapter IV of the NDPS Act. It is also clear from the plain language of section 41(2) of the NDPS Act that it does not impose any fetter or limitation to the powers of Gazetted officer to investigate into the matter and search for either by day or night. Thus ACP P.S. FIR No.70/00 Page 31 of 45 SC No. 133/04 Kushwaha though was authorized by DCP Udai Sahai to conduct the investigation in the present case, he himself also being a Gazetted officer was empowered under section 41(2) of the NDPS Act to exercise his unfettered powers to conduct the investigation in the present case either by day or by night and therefore in my considered opinion the fact that the house of the accused Satnam Singh was entered into by the members of the raiding team just before sunrise on the date of the incident does not vitiate the recovery made from the said premises. The Hon'ble Gujarat High Court in Dhanpal Singh's case (supra) (the judgment relied upon by Ld. APP) has also held similarly. With respect to the provisions of section 41(2) and 42(1) of the NDPS Act, the Hon'ble Court has held in para 17 as follows:
In view of the provisions of section 42(1), it is clear that officer of the gazetted rank may also be covered under the empowering, notification, but it is presumed, and it is the principle of administrative law, that if an officer has unlimited power under one section and limited powers under another section, when he has to exercise power in respect of some act or omission, he will be exercising unlimited powers and not limited powers or powers with some fetter. It is, therefore, to be presumed that whenever an officer of gazetted rank if empowered by the Government under both the provisions i.e. under section 41(2) and FIR No.70/00 Page 32 of 45 SC No. 133/04 42(1) in exercising power under NDPS Act, he will be exercising the powers under section 41(2) which is an unlimited one, except where he specifically states that he is exercising powers under section 42(1) i.e. limited powers or powers with fetter. Thus, it is clear from the above discussion that the officers referred to in section 41(1), 41(2) and 42(1) are not the same officers, but are different officers with qualified or unqualified powers. Therefore, by provisions of section 41(3) though all the powers of an officer acting under section 42 can be exercised by them, the fetter u/s 42 in particular as to powers to arrest, search and seizure between sunset and sunrise are not attracted in the case of the officer of the gazetted rank empowered u/s 41(2) of NDPS Act. The same are attracted for the officers, who fall short of powers in view of limited authorization or specific warrant.
In the same judgment, in para 19 has also observed as follows:
An officer authorised by the officer of the gazetted rank, who is empowered u/s 41(2) is also not required to take down the information in writing and send forthwith the same to his immediate official superior as it is his superior on receipt of information has authorised him to proceed in the matter. therefore, there is no question of compliance of section 42(2) so far as it relates to taking down of information in writing and sending the same to the superior officer.
FIR No.70/00 Page 33 of 45 SC No. 133/04
27. The aforementioned judicial dicta makes it clear that law therefore does not mandatorily require a gazetted officer to reduce the secret information received by him into writing. Thus, in the facts of the present case, DCP Udai Sahai was not mandatorily required by the law to reduce the secret information received by him into writing and therefore his failure to do so does not ipso facto vitiate the recovery of the contraband made in this case. However, I am also of the considered opinion that in the present case in view of the deposition of PW Udai Sahai in court, it is being rightly contended by Ld. Counsel for the accused that non reduction of the secret information into writing has caused serious prejudice to accused Priya Shah. DCP Udai Sahai has been examined as PW12 and in his examination in chief conducted on 02.04.2008, he has inter alia deposed that :
"In the month of Feb, 2000, I was posted as DCP West District, Rajouri Garden. Exact date, I do not remember but it was night of 04.02.2000, I received a telephonic information that in the area of Vasant Kunj, there was a house of Satnam Shah where there was the possibility of huge recovery of charas."
The aforementioned examination in chief of this witness makes it clear that a as per him, the information received was that there was a possibility FIR No.70/00 Page 34 of 45 SC No. 133/04 of recovery of charas in the house of Satnam Shah. In other words, in his examination in chief, he has not stated that he had any secret information pertaining to accused Priya Shah. It is only when the Ld. APP sought permission from the court to crossexamine this witness, did he depose that "it is correct that said information was that Satnam Shah and his daughter Priya Shah R/o H.No C9/9663, Vasant Kunj, Delhi might be in possession of a large quantity of charas in the said house." There is no explanation forthcoming from the prosecution as to how such a high ranking officer at the instance of whom, the raid in the present case was conducted could forget such an important fact namely that the secret information received, had also mentioned Priya Shah. The aforementioned discrepancy in the deposition of DCP Udai Sahai does have an important bearing on the question which is to be determined in the present case namely whether the prosecution has been able to prove that the contraband recovered from the house of Satnam Shah was in the conscious possession of accused Priya Shah.
28. For the reasons given herein below, I am of the considered opinion that present is not a case where this court can hold that the prosecution has been able to prove that the contraband recovered from the house of accused Satnam Shah was in conscious possession of accused FIR No.70/00 Page 35 of 45 SC No. 133/04 Priya Shah. It does appear from the evidence on record that the version of the prosecution that accused Priya Shah had on her own, in the presence of the public witnesses, produced three suitcases which were later on found to contain charas, is incorrect. Though as per the testimony of the police officials two independent public witnesses namely M.M. Mehrotra and Smt. Nisha Saxena were present during the entire search and seizure proceedings and that in their presence, the accused persons were given notice u/s 50 of the NDPS Act and that in their presence the accused persons had produced the suitcases containing the contraband, the said two public witnesses have not supported this version of the prosecution. Both PW1 Ms. Nisha Saxena and PW2 M.M. Mehrotra have deposed that when they entered the residence of Satnam Shah, 67 suitcases were already lying in the drawing doom. PW1 was confronted with her entire statement given u/s 161 Cr.PC where she had inter alia stated that in her presence notice u/s 50 NDPS Act were given to both accused Satnam Shah and Priya Shah and both father and daughter had confessed that they are in possession of charas and thereafter Satnam Shah had brought four suit cases and accused Priya Shah had brought three suitcases from adjacent bed room. But she denied the said statement in almost its entirety. Similar is the case with witness PW2. No doubt, both these witnesses have deposed that they did see the seven suitcases lying in the FIR No.70/00 Page 36 of 45 SC No. 133/04 drawing room of the residence of accused Satnam Shah and that the same were containing some dark green coloured substance wrapped in polythene from which samples were drawn. As narrated hereinabove, they have not supported the version of the prosecution that in their presence, both the accused persons were given notice u/s 50 of the NDPS Act and that they refused to get themselves searched before a Magistrate and thereafter on their own produced seven suitcases. PW3 Praveen Kumar, who admits that at one time, he was a special police officer, has also stated in his examination in chief that four suitcases were recovered from one bedroom of Satnam Shah and three were recovered from another room. In other words, according to his testimony also, it was not accused Priya Shah who had produced the three suitcases. The effect of the testimony of these public witnesses is that though it can be held that seven suitcases were recovered from the house of accused Satnam Shah, it cannot be stated that the said suitcases were produced by accused Priya Shah.
29. It is also to be borne in mind that though as per the testimony of the police officials PW9 Sh. O.P. Thakur, the IO in this case and PW23 Ct. Ashok Kumar, videography of the entire proceeding was done by PW23 Ct. Ashok Kumar, despite various opportunities granted, the FIR No.70/00 Page 37 of 45 SC No. 133/04 prosecution was unable to produce the said videography cassette before this court. Infact the accused had filed an application u/s 91 Cr.PC for production of the videography tape and the said application was allowed by the Ld. Predecessor of this court, but a perusal of record shows that the said cassette was never produced and on 25.03.2011, Addl. DCP Sh. Vijay Singh appeared before the court and submitted a report that despite all possible efforts having been made to trace out the cassette, the same is not traceable. At the time of conclusion of the final arguments, it has been informed to this court by the concerned DCP that inquiries are being conducted against Inspector Bhishan Mohan, HC Ajit Singh and Ct. Ashok Kumar for having misplaced the said cassette. In my considered opinion, it is being rightly contended on behalf of the accused that there is no material before this court to make an inference that the investigating agency has actually misplaced the said cassette and that there are no malafides in it not producing the said cassette before the court. On the contrary, the reports filed on record indicate that the said cassette was left at the office of DCP, SouthWest Sh. P. Kamraj by Ct. Ashok Kumar and HC Ajit Singh and it is unimaginable that the said cassette has become untraceable from such a highly secured office and therefore it is being rightly contended on behalf of the accused that the prosecution is deliberately not producing the said cassette for if it does, then the stand of FIR No.70/00 Page 38 of 45 SC No. 133/04 the accused that she did not produce the suitcases will stand proved.
30. Ld. APP for State Sh. S.C. Sirohi has then contended that it is immaterial that the prosecution has failed to produce the said cassette for according to him the prosecution has produced enough material on record to show that the accused was residing in the premises in question with her father and therefore his contention is that the accused Priya Shah should deemed to be in possession of suitcases recovered from the premises in question. He has pointed out that the property documents filed on record by PW4 Satpal Kaushal show that a 'will' has been executed in favour of the accused Priya Shah with respect to the flat in question from where the contraband has been recovered. As regards this contention of the Ld. APP, Ld. Defence counsel has submitted that the copy of the 'will' with respect to the house in question has not even been proved on record and even otherwise the said 'will' come into effect only after the death of the testator mentioned therein i.e. one Shashi Bala. He therefore submits that by no means can the accused be stated to be owner of the premises in question. He further submits that the accused has stepped into witness box and has withstood the test of cross examination and has deposed that she was staying with her mother at her aunt's house at A6 Vasant Vihar, DDA flats, Vasant Vihar and used to only occasionally visit her father. FIR No.70/00 Page 39 of 45 SC No. 133/04 His contention is therefore that this deposition makes it clear that she was not residing permanently in the premises in question and that therefore by no stretch of imagination can she be stated to be in conscious possession of the contraband recovered from the said house.
31. Though I am in complete agreement with the Ld. Defence counsel that the copy of the 'will' filed on record is not sufficient to infer at all that accused Priya Shah is owner of the house C9/9663 Vasant Kunj, however her contention that she used to permanently live with her mother and used to only occasionally visit her father is not acceptable. This is so because a perusal of the record shows that accused herself had, in an application TP(CRL) 30/10 filed by her u/s 407 Cr.P.C. for transfer of the present case before the Ld. District and Sessions Judge in February, 2000, (which was treated as an application filed u/s 408 Cr.PC), stated that she used to live with her father Sh Satnam Shah. It will be relevant herein to reproduce the para no. 2 (i) of the said application:
"That in February, 2000 the petitioner, who is a young lady and was about 34 years old, used to live with her father viz. Mr. Atnam Shah (Since deceased) alone at C9/9663, Vasant Kunj, New Delhi 110 070, since her mother (Mrs. Kumkum Shah) who is a patient of permanent paralysis was FIR No.70/00 Page 40 of 45 SC No. 133/04 staying separately with her sister at A6, Hill View Apartments, Vasant Vihar, new Delhi due to some personal disputes with her husband i.e. Mr. Satnam Shah (since Expired). The Petitioner had no choice but to live with her father since he declined to pay any amount towards her maintenance, study and other expenses in case she decides to stay with her mother."
The said application is accompanied with an affidavit of the accused Priya Shah wherein she has specifically stated that the contents of the affidavit are true to her knowledge. This document being a document filed on record by the accused herself shows that her contention that she was not residing with her father is not true. However be that so, this itself in my considered opinion, would still not be sufficient to hold that the accused should be deemed to be in possession of the contraband recovered from the house in question.
32. It is well settled law that the word "possession" must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. In its judgment pronounced in a case titled as Om Prakash @ Baba Vs. State of Rajasthan (2009) 10SCC 632, the facts before the FIR No.70/00 Page 41 of 45 SC No. 133/04 Hon'ble Supreme Court were that the prosecution had been unable to prove that the accused was the owner and in possession of the house from where the contraband was recovered. The Hon'ble Supreme Court in such facts held that :
"Even assuming for a moment that the house did belong to the appellant and was in his possession, the prosecution was further required to show that the appellant had exclusive possession of the contraband as a very large number of persons including the appellant and five of his brothers, their children and their parents were living therein."
33. Now in the present case also, even if it is taken that accused Priya Shah used to reside alongwith her father in the house from which contraband had been recovered, prosecution has been unable to show that accused had exclusive possession of the contraband or in conspiracy with her father was in joint possession of the contraband recovered from the house in question. It is well settled law that mere presence of a person at the scene i.e. where the offence was allegedly committed, do not constitute the offence of abetment and/or criminal conspiracy. Therefore, the mere fact that accused Priya Shah used to reside with her father cannot lead to the inference that she had the knowledge of all the articles lying in FIR No.70/00 Page 42 of 45 SC No. 133/04 the said house and therefore no knowledge on part of accused Priya Shah with respect to the suitcases of charas recovered can be imputed to her. As per the own version of the prosecution, accused Priya Shah had not provided them with the keys of the suitcases. A daughter living with her father is not to be presumed to be in the knowledge of all the articles possessed by her father. There is no evidence collected by the investigating agency that accused Priya Shah was involved in the day to day business affairs of her father. Much reliance has been placed by Ld. APP Sh. S.C. Sirohi on the deposition of PW8 Surender Pal Sharma to contend that accused Priya Shah had the requisite knowledge with respect to the suitcases in question. As narrated hereinabove, PW8 is a gardener who has deposed that on 30.01.2000, after he had mowed the lawns at the residence of accused Priya Shah and Satnam Shah at Gurgaon, he was asked by the father of accused Priya Shah to load seven suitcases in their car. It is a matter of record that this witness in his statement given u/s 161 Cr.PC had not stated that he was helped by accused Priya Shah in loading the same in their car but before the court, he stated the said fact. This part of the testimony according to me is a vast improvement from his earlier statement u/s 161 Cr.PC and the witness despite being confronted with the same, has been unable to satisfactorily explain the same. It has also been pointed out by the Ld. Defence Counsel that this witness has admitted that FIR No.70/00 Page 43 of 45 SC No. 133/04 on the date when he was examined in chief on 26.02.2005, the IO of the present case SI O.P. Thakur had met him in the court premises and in such circumstances, the suggestion that he was tutored by the IO, who was though present in the court premises did not chose to appear before the court, cannot be brushed aside lightly. Infact this court had made a query from Ld. APP Ms. Sushma as to which of the police officials and in what circumstances had recorded the statement of this witness u/s 161 Cr.PC, since none of the police officials before this court had deposed about the recording of the said statement. Ld. APP after going through the case diary and the police file could not state as to which police official had recorded the statement of this witness and could only inform that the said statement appears to have been recorded when the accused Satnam Shah was taken in police custody and had disclosed that he had moved the seven suitcases from his Gurgaon flat to his Vasant Kunj flat on 30.01.2000. Be that so, in my considered opinion taking into account that this witness u/s 161 Cr.PC had only stated that it was on the asking of Satnam Shah that he had loaded the suitcases in his car and had not attributed any role to the accused Priya Shah, his testimony in court that accused Priya Shah had helped him to load the suitcases into their car cannot be believed to infer that she had the knowledge about the contents of the same.
FIR No.70/00 Page 44 of 45 SC No. 133/04
34. In view of my discussion hereinabove, I am of the considered opinion that the prosecution has failed to produce any material from which it can be inferred/established that there was some sort of agreement between Satnam Shah and Priya Shah and/or each of them instigated, aided or abetted the other with regard to the alleged possession of contraband which was allegedly recovered from the house of Satnam Shah or that accused Priya Shah had the knowledge and was in conscious possession of the contents of the suitcases in question. As such, the accused Priya Shah is to be given the benefit of doubt. In view thereof, she is hereby accordingly acquitted of the charges framed against her. However, in terms of the provision of section 437 A Cr.P.C, she is hereby directed to tender personal bond of Rs.10,000/ with one surety of like amount to ensure her presence before the Ld. Appellate Court in case an appeal is filed against the present judgment. It is made clear that the said bond shall remain in force only for a period of six months. Personal bond tendered and has been accepted. On request of the accused, she is granted time till 27.04.2012 to produce a surety bond. Case stands adjourned for same on 27.04.2012 at 02.00 PM.
Announced in open Court (Anu Grover Baliga)
on this 21st day of April, 2012 Special Judge NDPS : New Delhi
FIR No.70/00 Page 45 of 45